by John Cotter, Senior Lecturer at University of Wolverhampton Law School

▪

The opening lines of a judgment – in common law jurisdictions, at least – can very often be revealing of a court’s concerns. The first five paragraphs of the collegiate High Court judgment (Lord Thomas CJ, Sir Terence Etherton MR and Sales LJ) in Miller indicate very clearly the judges’ worry that their judgment would be misunderstood by sections of the media and the wider public. This judgment did not have “any bearing on the question of the merits or demerits of a withdrawal of the [UK] from the [EU]”, the Court stated. Rather, the question before the Court was a narrow constitutional issue, and a purely legal matter: whether the government could use Royal prerogative powers to give notification of withdrawal from the EU pursuant to Article 50 TEU or whether this was a matter for the Houses of Parliament. On this question, the High Court ruled that the notification under Article 50 TEU may not be given by means of Royal prerogative; rather, such notification is a matter for Parliament exclusively. While the conducting of international relations and the signing of and withdrawal from international treaties were powers generally to be exercised by the executive on behalf of the Crown, the High Court reasoned that where withdrawal from a treaty would result in changes to domestic law (as withdrawal from the EU would), such withdrawal could not be effected without Parliament.

The Court’s attempt to avoid misinterpretation of its role appears, however, to have fallen on deaf or wilfully closed ears, with the judges being subjected to attacks in sections of the media that were astonishing even by the standards of Britain’s rather histrionic tabloid press (one publication’s front page contained the headline “Enemies of the People” along with photographs of the three judges). To many of those advocating Brexit, the judgment was an unelected court playing politics and frustrating the will of the people (even though the European Union Referendum Act 2015 had not provided that the referendum result be binding). To the Court’s defenders, the judgment was the latest in a line of rulings in which the courts upheld the supremacy of Parliament over Royal prerogative powers. It is certainly the case that the High Court judgment, if upheld by the Supreme Court (which is due to hear an appeal in early December), has the potential to make the giving of the Article 50 notification a more lengthy and complex process. It is conceivable that both Houses of Parliament could use their leverage to require the government to reveal more detail on their post-notification negotiating aims. However, as a matter of realpolitik, the judgment is unlikely prevent Article 50 being triggered: Labour, the largest opposition party in the Commons has indicated that it will not vote against a Bill to give notification under Article 50, and it is unlikely that the Lords would provoke further questions about their relevance in modern Britain by blocking Brexit.

Despite the fact that Miller relates to the constitutional law of the UK exclusively (since Article 50 provides that the decision to withdraw from the EU is to be made in accordance with a Member State’s “own constitutional requirements”), the judgment nevertheless raises issues of interest to non-British scholars of EU law. Most obviously, there is the question as to the correctness of the notion that a notification to withdraw under Article 50 is irrevocable. The High Court’s ruling rests on this assumption, since it suggested that the giving of notification in itself would lead inevitably to the loss of certain rights under EU law which could not be replicated in domestic law: the right of access the Court of Justice under the Article 267 TFEU preliminary reference procedure, for instance. It was reported in The Guardian newspaper on the 12^th November that the government may now, in a volte face, argue before the Supreme Court that Parliament could revoke any notification to withdraw made by the executive.[i] This argument would, in turn, mean that the notification in itself would not have the effect of leading to the inevitable withdrawal of certain rights under EU law, since Parliament would retain ultimate control up to the date of the UK’s exit. If the government does raise this argument before the Supreme Court, a preliminary reference on the question would appear inevitable, given that a Court of Justice ruling on this question would very likely be necessary to determine the dispute, and the acte clair exception could not be said to apply.

This, in turn, causes one to speculate how the Court of Justice might rule on the issue of revocation of an Article 50 notification. Craig, among others, argues that a notification to withdraw from the EU under Article 50 is revocable. Craig’s argument relies, primarily, on principles of international law: (1) that a party is not bound by a treaty until agreement has been concluded; and, (2) that Article 68 of the Vienna Convention on the Law of Treaties provides that a notice or instrument to withdraw from the operation of a treaty “may be revoked at any time before it takes effect.”[ii] Sarmiento has argued that a doctrine of irrevocability could lead to an absurdity were a post-notification general election to lead to a parliamentary majority for those wishing to withdraw the notification, since none of the parties negotiating the Member State’s exit would actually want the exit.[iii] These are convincing arguments, but, in my view, they do not give adequate consideration to what are weighty counter arguments. Firstly, the role of the Court of Justice, as an EU institution under Article 13(1) TEU, is to “serve [the EU’s] interests, those of its citizens and those of the Member States”. The Court could easily take the view that the best way in which to serve these interests is to make an Article 50 notification resemble, as much as possible, a nuclear button. There is the danger that if Member States believe that such a notification can be made and then withdrawn it might lead to the use of a notification as a measure of protest by populist governments or as a means for Member State governments to gain negotiating leverage where not getting their way in Council. Such a use of Article 50, no longer as unforeseeable as it was in the past, would be a very obvious threat to the stability of the EU. Secondly, reliance on the ordinary principles of international law may not be all that convincing either: the Court of Justice has maintained repeatedly that the EU is a “new legal order of international law” to which the usual principles may not apply. If the Court sees greater utility in a doctrine of irrevocability than revocability, I have no doubt that it would be prepared to overlook Article 68 of the Vienna Convention on the Law of Treaties, just as it has, in the past, been prepared to disregard the literal meaning of TFEU provisions to achieve the effect utile of EU law.

[i] Boycott, Owen, “Article 50 could be reversed, government may argue in Brexit case”, The Guardian, 12^th November 2016 https://www.theguardian.com/politics/2016/nov/11/brexit-could-be-reversed-government-lawyers-may-argue (last accessed: 24^th November 2016).

[ii] Craig, Paul, “Miller: Winning Battles and Losing Wars”, (OxHRH Blog, 4^th November 2016) http://ohrh.law.ox.ac.uk/miller-winning-battles-and-losing-wars (last accessed: 24th November 2016).

[iii] Sarmiento, Daniel, “Miller, Brexit and the (maybe not to so evil) Court of Justice”, VerfBlog, 8^th November 2016 http://verfassungsblog.de/miller-brexit-and-the-maybe-not-to-so-evil-court-of-justice (last accessed: 24^th November 2016).

Picture credits: New passport(…), by Chris Fleming